Don Bosco School v. Luton Thakur — 1997 DIGILAW 140 (CAL)

JUDGMENT D. P. Sarkar II, J.: This Appeal is directed against the Judgment and the Decree of reversal passed by Sri N.D. Khan, ld, Assistant District Judge, 3rd Court, Howrah in Title Appeal No. 221/1989 arising out of the judgment of dismissal passed by the ld. Munsif, 1st Court, Howrah in Title Suit No. 137/1986. 2. The facts leading to this Appeal are, in short, as follows:- The respondent––Luton Thakur was appointed as an Assistant teacher on 6.1.1960 by the Managing Committee of the appellant-school viz. Don Bosco School at Liluah on probation for a year with the condition that he would be confirmed to the post on rendering satisfactory service. With effect from January, 1961 he was confirmed. Thereafter on 30.6.1961 an agreement was signed between the plaintiff and the Secretary of the appellant-school, in terms of which the service of the respondent could be terminated with three months' notice or three months' pay in lieu of notice under cl. 5 of the agreement, without assigning any reason. The service of the respondent Sri Thakur was also approved by the Government and he was allowed to draw Dearness Allowances and to subscribe to the Provident Fund. On 14.6.1985 during the Silver Jubilee celebration, the respondent got an award of Rs. 1,000/- (Rupees one thousand only) from the Institution for his satisfactory service for twenty-five years. The respondent is a Post-graduate Degree Holder with B.Ed. Degree. According to the respondent, the administration of the School used to be run by the School Authority in a most arbitrary way, all the time ignoring the principle of natural justice and as such the teaching and the non-teaching staff of that School formed an association to protest against the arbitrariness and high handedness of the School Authority. That association was duly registered on 15.1.1986 by the Registrar of Societies and the present respondent became the first Secretary of that association and he placed a Charter of Demand before the School Authority on 11.2.1986. And on 12.2.1986 the respondent Sri Thakur received a registered letter with a cheque of Rs. 4,445/- (Rupees four thousand four hundred and forty-five only) as his service was terminated by the Managing Committee with effect from 11.2.1986 without assigning any reason whatever or without following any disciplinary proceeding against him. The respondent no. And on 12.2.1986 the respondent Sri Thakur received a registered letter with a cheque of Rs. 4,445/- (Rupees four thousand four hundred and forty-five only) as his service was terminated by the Managing Committee with effect from 11.2.1986 without assigning any reason whatever or without following any disciplinary proceeding against him. The respondent no. 1 made an Appeal before the Deputy Director of Education (Anglo Indian Schools), Government of West Bengal and ultimately he was intimated by the office of that Deputy Director that as the termination was done under cl. 5 of the agreement, the Government had nothing to do in the matter. The respondent no. 1 then filed a Title Suit before the ld. Munsif challenging the order of termination of his service on the ground that it was arbitrary, vindictive and against the principle of natural justice, as he was not given any chance to know what were the charges against him or any chance to defend himself. The respondent no.1 also challenged in that suit, that the agreement which he had to make with the Secretary of the Institution was against the public and was not a free mental act of the respondent no. 1 as he had to accept the terms of that agreement under fear of losing his job. 3. The ld. Trial Court dismissed the suit, on the ground that the present appellant-School being an educational Institution run by the religious minority, the Institution enjoys special protection under Art. 30 of the Constitution of India and such an Institution under the cover of the Article had the right to run the administration of that Institution according to their choice without interference by the Government or anybody. There is no statutory relationship between the parties. They are governed by the Contract of Service. The respondent no. 1-Sri Thakur on being aggrieved by such order of dismissal of his suit by the ld. Trial Court was pleased to prefer an Appeal before the ld. Appellate Court and the ld. Appellate Court after careful consideration of all the points against before it set aside the judgment and the Decree passed by the ld. Munsif and sent back the suit to the ld. Trial Court with a direction for fresh disposal in accordance with law and in the light of the Judgment of the ld. Appellate Court and the ld. Appellate Court after careful consideration of all the points against before it set aside the judgment and the Decree passed by the ld. Munsif and sent back the suit to the ld. Trial Court with a direction for fresh disposal in accordance with law and in the light of the Judgment of the ld. Appellate Court with liberty to the parties to amend the pleadings, if necessary and to allow the parties to adduce further evidence, if any. The present appellant viz. Don Bosco School was aggrieved by the order of the ld. 1st Appellate Court on the ground, inter alia, that the ld. 1st Appellate Court misread the provision of the Constitution and the relevant laws, rules and regulations, has filed the present second Appeal. 4. The basic question involved in this Appeal is the question as to the extent of the right of the religious minority to run their Educational Institutions according to their own choice. It is to be considered whether such right is unlimited and if the religious minority under the cover of Art. 30 of the Constitution of India is authorised to exercise their right of administration arbitrarily and if they are authorised to terminate the service of a teacher unceremoniously without assigning any reason, who has rendered service for long 25 years to the Institution and also received an award of Rs. 1,000/- as a mark of distinction of the service he rendered as a teacher. 5. The ld. Advocate for the appellant has simply took shelter under the protective umbrella provided by Art. 30 of the Constitution of India to the religious minority and has relied upon cl. 5 of the agreement that was entered into between the respondent no. 1 and the Secretary of the school. 6. There is no dispute about the legal position that Art. 30 of the Constitution has guaranteed the religious minority freedom to administer the Educational Institution run by such community according to their choice. But I think that a freedom should not be interpreted as an unfettered freedom. The principle of equality in the eye of law is enshrined in our Constitution and no particular provision of law or of the Constitution, which is lex suprema, should be construed in a way to render that principle of equality, equity and natural justice nugatory. But I think that a freedom should not be interpreted as an unfettered freedom. The principle of equality in the eye of law is enshrined in our Constitution and no particular provision of law or of the Constitution, which is lex suprema, should be construed in a way to render that principle of equality, equity and natural justice nugatory. I feel constrained to say that the expression 'administration' used in Art. 30 of the Constitution does not include maladministrtion. As a teacher having a post-graduate degree with a degree in Education, having rendered appreciable service for long 25 years, has fallen from the grace of the School Authority only because, he formed an association with the teaching and non-teaching staff, in order to ventilate their grievances against the administration and in order to demand their rightful dues from the Authority. Only on this pretext, but without mentioning it, the service of that teacher was terminated unceremoniously and he was made goodbye unwept and unsung. In the largest democracy in the world, such an autocratic step of a particular Institution is being tried to be defended and glorified citing the Constitutional provision, is really unfortunate. 7. The Apex Court of the land in its numerous decisions has made it clear that even an accused charged with heinous offence like murder, gang rape, dacoity should not be deprived of the right to defend himself. But in the instant case, a teacher who was entrusted with the task of educating the future citizens of India has been deprived of his service of long 25 years, his only source of earning, his daily bread and without getting any right to know the charges against him or to defend himself. Such an arbitrary act on the part of the school administration deserves to be condemned, at least at the fag end of the 20th Century when the concept of human rights has assumed global importance. 8. Human rights are those rights which are necessary for a human being to live with all dignities of a human being. If anybody is deprived of his bread at the fag end of his service life and his entire family is thrown into economic distress definitely such an act affects the human right adversely. 9. 8. Human rights are those rights which are necessary for a human being to live with all dignities of a human being. If anybody is deprived of his bread at the fag end of his service life and his entire family is thrown into economic distress definitely such an act affects the human right adversely. 9. That apart, right to life is a fundamental right guaranteed by Art. 21 of the Constitution of India and it is now well settled by the Hon'ble Supreme Court of India, that right to life also includes right to livelihood ( AIR 1986 SC 180 ) because if a person is deprived of his only source of livelihood, it is not possible for such a person to survive any more. So, by depriving the right to earn livelihood, a person is being deprived of his right to life. In the instant case, the teacher has been deprived of his source of income and that also without any ground; simply at the whims of the master, naturally such an act also affects the right to life not only of the teacher concerned but also the other members of his family who are dependent on him. 10. The ld. Advocate for the appellant submits that right to life may include right to livelihood but this right or interpretation of right to life shall not be extended to the present respondent because it is confined to the parties having constitutional or statutory status. 11. I feel constrained to disagree with the ld. Advocate for the appellant because right to life cannot be confined to a particular section of the citizens, because life of a Government employee and that of a teacher of a private School such as the Educational Institution of the religious or linguistic minority can hardly be differentiated. Both the lives are valuable and both the lives can equally claim protection under the laws of the State. It does not sound reasonable to say that right to live is confined to an employee having statutory status and only in such case such right includes also right to livelihood and that a teacher of an Educational Institution of religious minority, if deprived of his livelihood arbitrarily by the School Authority, his case will be left beyond the ambit of Art. 21 of the Constitution. 12. Of course, no right can be absolute right. 12. Of course, no right can be absolute right. A person may be deprived of such right, but according to the procedure of law. In the instant case, it should be done according to the regulatory Code approved by the Government for the administration of the European School. We shall consider in the subsequent paragraphs how the appellant violated and ignored the provision of such Regulatory Code. 13. In the instant case, the respondent No.1 formed an association with the teaching and non-teaching staff, raised their voice of protest against mal-administration sometimes, and also submitted a Charter of Demand before the Authority. All these acts are guaranteed by the Constitution of Democratic India. Right to form association is guaranteed by Art. 19(1)(c) of the Constitution of India and the purpose of such association if remains within the bounds of democratic norms, I think, that cannot be treated as a ground for insubordination or otherwise, sufficient to terminate the service of a teacher who rendered his service for long 25 years. It is true that the appellant tried to take a safe shelter under cl. 5 of the agreement in order to avoid the call of the principle of natural justice. But the secret remains open to all that for exercising the democratic right such as forming an association, submitting a Charter of Demand were the causes of such termination. The respondent No. 1 got the letter of termination only a day after the Charter of Demand was submitted by him as the Secretary of the newly formed association. This aspect gives rise to serious question where democratic climate is flowing all over the country, whether some institutions of religious minority will be permitted to pollute the democratic ethics by their autocratic acts. Since the ancient time, since prior to the Egyptian civilisation, Asyrian civilisation offences were committed against the humanity in general, in the name of religion. But standing on the threshold of the 21st Century, we should not indulge in such religious liberty to infringe the human right or the right to human life under the cover of religious minority. 14. That apart, the order of termination suffers from inherent defects. The Code of Regulations for European Schools as re-constituted in 1939 lays down in cl. But standing on the threshold of the 21st Century, we should not indulge in such religious liberty to infringe the human right or the right to human life under the cover of religious minority. 14. That apart, the order of termination suffers from inherent defects. The Code of Regulations for European Schools as re-constituted in 1939 lays down in cl. 1 of Chapter III that every teacher in an aided school shall be engaged under a written agreement with the Governing Body and which agreement shall be approved by the Inspector of European Schools. It is further laid down that such contract shall be terminable by not less than three calendar months' notice on either side ending with the school term where there are terms. The agreement is an annexure in this case and was marked as exhibit-1 in the learned Trial Court. Term No.4 contains the provision for dismissal of a teacher for non-satisfactory service, for immoral conduct of gross kind or repeated acts of insubordination or neglect of duties. In the instant case, no such ground has been levelled against the respondent-teacher. His service was terminated without assigning any reason. 15. It is the case of the appellant that his service was terminated not in terms of term No.4 but in terms of term No.5. Term No.5 contains that service of a teacher can be terminated with three months' notice and the requirement of three months' notice will be considered to have been fulfilled if either side, for adequate reasons passed to the other party money equivalent to three months' salary in lieu of notice. 16. In this connection it is submitted by the respondent that this agreement has not been approved by the Inspector of European Schools now substituted by the Deputy Director of Education (Anglo Indian) Schools, Government of West Bengal as required by cl. 1 of Chapter III of the Code of Regulation, 1939. The respondent, in this connection, refers to a copy of the latter written by Deputy Director of Schools, Education, Government of West Bengal to the Law Officer, School Education Directorate in connection with the Appeal filed by the present respondent that the School did not obtain approval of the Deputy Director of School Education, in respect of terms and conditions of the agreement. There is nothing to show that actually such agreement between the respondent and the Governing Body of the Institution i.e., the appellant was approved by the required authority at any time. If it was not so approved then definitely such an agreement should not be given any importance. 17. Secondly, it is also submitted by the respondent that the Code of Regulations does not contain any provision to the effect that payment of three months' salary at a time would be adequate compliance with the requirement of three months' notice. But such a clause has been incorporated in the agreement and as such it is in violation of the provision of the Code of Regulation. The Deputy Director of School Education also in his letter referred to the aforesaid fact and pointed out to this defect in the order of termination without notice, as done by the School Authority. The respondent-Mr. Thakur draws my attention to cl. 5 where the provision for payment of three months' salary in lieu of three months' notice is incorporated. It is clearly mentioned that three months' salary may be paid to the teacher in lieu of three months' notice, but with adequate reasons. In the instant case, no reasoning has been mentioned in the letter of termination, simply the order of termination with a cheque of three months' salary was delivered to the respondent. Thus, the School Authority has acted in an arbitrary way ignoring the provision of the Code of Regulations and even in violation of the terms of agreement. 18. Again, we find from cl. 3 of Chapter III of the Code of Regulations for European Schools that no teacher may be dismissed either summarily or with notice save by the Government Body who in case of dismissal immediately report the fact with full particulars to the Inspector, now Deputy Director of School, Education. A teacher who considered himself unjustly dismissed also may prefer a representation to the said Deputy Director of School Education and the Governing Body shall defer its final decision till the views of the Deputy Director of School Education is obtained. In the instant case, it is submitted by the respondent that no particulars regarding the termination of his service were supplied to the Deputy Director of School Education. In the instant case, it is submitted by the respondent that no particulars regarding the termination of his service were supplied to the Deputy Director of School Education. In Lilly & Kurian's reported in AIR 1979 SC 52 the Constitutional Bench of the Hon'ble Supreme Court has laid down that Art. 30(1) is not a Charter for mal-administration. Therefore, Regulations, so that the right to administer may be better exercised for the benefit of the Institution is permissible. Again, the Constitutional position has been made more clear by the Hon'ble Supreme Court in its decision in All Saints High School vs. Government of Andhra Pradesh reported in AIR 1980 SC 1042 . Hon'ble Chief Justice Mr. Chandrachurh laid down with reference to several decision on the point: "these decisions show that while the right of religious and linguistic minority to establish and administer Educational Institutions of their choice cannot be interfered with, restriction by way of regulations for the purpose of ensuring educational standards and maintaining the purpose of ensuring educational standards and maintaining the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it's competently staffed, conditions of service prescribe minimum qualifications for the staff, their pay scales, their entitlement to other benefits of service and the laying down of safeguards which must be observed before they are removed or dismissed from service or their services where terminated are all permissible measures of a regulatory character". In view of such decision of the Hon'ble Supreme Court it is really difficult to affirm the action of summary dismissal of the service of the respondent No.1 without assigning any reason under cl. 5 of the agreement specially ignoring the terms of the contract and the Regulatory Code and acting at times beyond the provision of such Regulatory Code. The respondent in this Appeal has also challenged the term No.5 in the agreement in question as against public policy. In this connection, he has drawn my attention to a decision of the Hon'ble Supreme Court reported in AIR 1986 SC 1571 . In that case also there was contract between the employer and the employee, that even the service of a permanent employee may be terminated by giving notice or pay in lieu of such notice for three months. It was held that such a contract is opposed to public policy. In that case also there was contract between the employer and the employee, that even the service of a permanent employee may be terminated by giving notice or pay in lieu of such notice for three months. It was held that such a contract is opposed to public policy. It was held that r. 9 is void under s. 23 of the Contract Act as being opposed to public policy and is also ultra vires of Art. 14 of the Constitution. It was held by the Hon'ble Supreme Court in that decision that such termination was absolutely bad being done ignoring audi alteram partem Rule and violating the principles contained in Art. 39 & 41 of the Constitution. 19. It has been further laid down in that decision by the Hon'ble Supreme Court that the principle deducible from various precedents is that the Courts will not enforce and will, when called upon to do so, strike down an unfair, unreasonable contract or an unfair and unreasonable clause in a contract entered into between the parties who were not equal in bargaining power. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply were the inequality is the result of the circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or service or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply were a man has no choice or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed form..........however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be". It was concluded by the Apex Court that these are opposed to public policies and required to be adjudged void. 20. The learned Advocate for the appellant submits that this decision was passed in a case where the party has a statutory status. The employer was a Government Undertaking. But in the instant case, the respondent-teacher has got no status which may attract the constitutional remedy. 20. The learned Advocate for the appellant submits that this decision was passed in a case where the party has a statutory status. The employer was a Government Undertaking. But in the instant case, the respondent-teacher has got no status which may attract the constitutional remedy. I agree to such submissions, but I like to point out that, strictly speaking the Rules and Regulations which are applicable to an employer and an employee having status may not be applicable to a poor teacher of a private institution and that also working under the protective umbrella under Art. 30 of the Constitution. But at the same time, I cannot agree, that the principles of natural justice as enunciated by the Apex Court in deciding that particular case will not be applicable to a case of a teacher who is no less a citizen of India; only because he is an employee under an Institution covered by Art. 30 of the Constitution. Justice should not be given double standard. The principle of justice must be equal for all provided that the fundamental consideration behind Article 30 is not violated otherwise. From such point of view term No.5 of Chapter III of the Code of Regulation for European School, I feel constrained to hold, is opposed to not only public policy but also to principle of human rights and natural justice. 21. In the result, I find nothing wrong in the impugned judgment of the ld. Appellate Court. The order of remand passed by the ld. Appellate Court requires no interference. Accordingly, the Second Appeal is hereby dismissed on contest with cost. The impugned judgment and Order passed by the learned Appellate Court are hereby affirmed. As the matter is old one the learned Trial Court is hereby directed to dispose of the matter afresh preferably within six months from the date of receipt of the Lower Court Record. Appeal dismissed.